Buffalo’s Common Council must take full responsibility for the proposed Green Code

** It is our city’s legislative body – not Mayor Brown – that possesses the authority and obligation to determine the timetable for public comment and review, and the ultimate content of Buffalo’s new zoning and development law.”

Mayor Byron W. Brown’s “Green Code team” issued a “MEDIA ALERT/PHOTO OPPORTUNITY” advisory this morning for a media event at 2:00 pm this afternoon at Larkin Square. Following a full-year of no public activity concerning the proposed new zoning/land use law, the Mayor is announcing today’s official filing of the Buffalo Green Code with the Common Council, and proclaiming the start of “the formal public comment period under the State Environmental Quality Review Act (SEQRA).”

With all due respect, Your Honor, the Common Council members are the elected officials with the authority to decide the timetable for review of the proposed new law, not you. And, the Common Council, not the Mayor or his Office of Strategic Planning, has the power and responsibility for determining the final version of a comprehensive set of regulations that will significantly impact Buffalo residents, voters, and taxpayers for generations.

I look forward to reviewing and objectively assessing the latest version of the draft Green Code – from the perspective of a lawyer who has spent a quarter-century protecting the quality of life of Buffalo residents – as soon as the public is provided access to the document. [You can read my commentary regarding the May 2014 version of the draft Green Code here and here and here.] Meanwhile, something seems totally out-of-whack with the Mayor’s announcement that the Common Council will initiate the formal public comment period “upon acceptance of the Green Code at its October 27th regular meeting.”

According to law, the SEQRA “comment period” [which can be as short as 30 days] does NOT commence when the “lead agency” receives the proposed new legislation [that is, the proposed Green Code]. The SEQRA comment period starts when the lead agency has completed a Draft Environmental Impact Statement [DEIS]. So, unless the Mayor’s Office of Strategic Planning has prepared a DEIS, and is delivering that voluminous document along with the proposed Green Code to the Common Council today, the Common Council will not, in fact, be in a position to initiate the formal public comment period under SEQRA on October 27th.

I apologize for the technical nature of what follows, but several important legal points must be kept in mind:

(1) According to the SEQRA regulations, the “lead agency” is “an involved agency PRINCIPALLY RESPONSIBLE … for approving an action.” An “involved agency” means a state or local agency “that has jurisdiction to … approve … an action.” Due to the fact that the proposed action [the adoption of the Green Code] is a legislative act that only the Common Council has the authority to approve, under law, the Common Council is obligated to serve as “lead agency”, not the Office of Strategic Planning, or the City Planning Board, or any other agency or board.

(2) NY’s courts have consistently held that a lead agency may NOT lawfully delegate the responsibility of making SEQRA determinations to another agency and, by doing so, insulate itself from the environmental review process [that is, actually thinking about the impacts of the proposed legislation].

(3) According to the SEQRA regulations, the function of a DEIS is to provide “a means for agencies, project sponsors and THE PUBLIC to systematically consider significant adverse environmental impacts, alternatives and mitigation.” A DEIS must “evaluate ALL reasonable alternatives.”

(4) According to the SEQRA regulations and numerous appellate court decisions, the environmental review under SEQRA is supposed to take place “at the earliest possible time,” that is, when there is still sufficient flexibility in deciding the scope and content of the proposed action. To say the very least, it is awfully late in the decision-making process – the point when the Mayor’s team believes that it has the final version of the Green Code – to be performing the mandated environmental review.

If I were a member of the media and today’s photo provided an opportunity to ask questions, here are some of the questions I would have for Mayor Brown, Executive Director Mehaffy and Council President Pridgen:

(1) Who is the “lead agency” for the proposed Green Code? [And, “City of Buffalo” is NOT specific enough.]

(2) Has the DEIS been completed? If so, who prepared it?

(3) Why has the Mayor’s team waited to this late point in the Green Code drafting process to provide the Common Council and the public with the DEIS?

(4) When and how will the public have access to (a) the proposed Green Code, and (b) the DEIS?

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